STATE OF FLORIDA, Petitioner,
JOHN T. CREWS, Judge, Respondent.
[September 27, 1985]
ADKINS, Acting Chief Justice.
We have before us the state's application for writ of
prohibition and motion to vacate stay. On September 26, 1985,
the trial court granted Stephen Todd Booker's motion for an
evidentiary hearing and ordered a stay of execution. We deny the
state's application for writ of prohibition and motion to vacate
On November 8, 1983, Booker filed a motion for post-
conviction relief in the trial court. Booker raised the claim of
ineffective assistance of trial counsel. The trial court granted
an evidentiary hearing. Following the hearing, the trial court
denied Booker's claim for relief. Upon appeal, we affirmed the
trial court's order. Booker v. State, 441 So.2d 148 (Fla. 1983).
The state asserts that Booker's motion is an "abuse of the
post-conviction process" because it is his second motion for
post~conviction relief filed in the state court system. See
Smith v. State, 453 So.2d 388 (Fla. 1984). We disagree. State
v. Burton, 314 So.2d 136 (Fla. 1975), is controlling. In Burton,
we held that since facts disclosed in an affidavit attached to
original motion for new trial and accepted as true were basically
false and such false statements constituted fraud practiced on
the court, the court had authority to entertain a petition for
rehearing and vacate a new trial order. In this instance, the
trial court concluded that testimony produced at the hearing for
post-conviction relief on November 14, 1983, was false and
constituted a fraud on the court. As a result, the trial court
had authority to entertain defendant's motion in post-conviction
The trial court did not err in granting defendant an
evidentiary hearing on the claim of ineffective assistance of
counsel. The movant is entitled to an evidentiary hearing unless
the motion or files and records in the case conclusively show
that the movant is entitled to no relief. O'Callaghan v. State,
461 So.2d 1354, 1355 (Fla. 1984) (citations omitted) .
The state has failed to show an abuse of the trial court's
discretion in finding that the files and records of the case do
not conclusively show that the defendant is entitled to no relief
on that ground.
Accordingly, we deny the state's application for writ of
prohibition and motion to vacate stay.
It is so ordered.
OVERTON, McDONALD, EHRLICH and SHAW, JJ., Concur
Original Proceeding - Prohibition
Jim Smith, Attorney General and Gary L. Printy, Assistant
Attorney General, Tallahassee, Florida,
John T. Crews, Circuit Judge, Respondent; and James E. Coleman, Jr.,
Marian E. Lindberg and Jeffrey D. Robinson of Wilmer, Cutler and
Pickering, Washington, D.C., Counsel for Stephen Todd Booker